Your Right to Know

WASHINGTON — The U.S. Supreme Court said yesterday that states are free to allow public-records
access only to residents of their state, delivering a blow to freedom-of-information advocates who
had challenged a Virginia law.

In a unanimous ruling, the court said two out-of-state men did not have a right to view the
documents. Arkansas, Delaware and Tennessee are among the states with similar laws, although some
do not enforce them.

The men, Mark McBurney and Roger Hurlbert, had claimed the restrictions violated a provision of
the U.S. Constitution that requires states to treat non-residents the same as residents.

McBurney, a former Virginia resident, was seeking documents relating to a family dispute with
his ex-wife. Hurlbert runs a California-based business that seeks real-estate tax records on behalf
of private clients.

The state rebuffed requests from both men, prompting them to sue. They were backed by
civil-liberties groups, including the American Civil Liberties Union and media organizations that
cited freedom-of-information laws ensuring open records.

In the ruling, Justice Samuel Alito said the provision of the Constitution in question, known as
the “privileges and immunities clause,” does not extend a sweeping right to all the information
made available via freedom-of-information laws.

He noted that during the early years of the United States, there was no widespread assumption
that the public could access records, and that most freedom-of-information laws were passed
relatively recently.

“There is no contention that the nation’s unity foundered in their absence,” Alito wrote.

Deepak Gupta, the attorney who argued the case for the challengers, said the trend in recent
years has been for states to make data available to residents of other states. “I don’t think this
decision is a reason to reverse course,” he said.

Virginia Attorney General Ken Cuccinelli welcomed the ruling, saying in a statement that
Virginia taxpayers should not have to subsidize out-of-state requests made using the state’s
Freedom of Information Act. “FOIA is an important tool to ensure open government,” he said. “But
responding to FOIA requests is a financial burden on Virginia taxpayers.”The case is McBurney v.
Young, U.S. Supreme Court, No. 12-17.